Fault as a Pre-Requisite Constitutive Element for Delictual Liability

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According to Neethling a delict is an act of a person which in a wrongful and culpable (fault) way causes harm to another person. As can be construed from the definition of a delict culpableness or fault is one of the elements, which must be present for someone to have a successful delictual claim. Hence, this paper is mainly aimed at providing an in-depth discussion on fault as a pre-requisite for a successful delictual claim.

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Definition of fault (culpa) and its two main forms

According to jurist, such as De Wet and Swanepoel, the element of fault is defined as the inexcusable nature with which a person acts. In addition, De Wet goes on to outline that fault is “something” for which a person is blamed and, therefore, not the object of blame or the blame itself. Further, in practice, two main forms of fault are recognised, namely, intention (dolus) and negligence (culpa). Neethling submits that, this commonly refers to the legal blameworthiness or the inexcusable state of mind or conduct of someone who acted wrongfully. Thus, fault can only be present if a person has acted wrongfully.

Factors that should be present for someone to have fault

Before one establishes whether a defendant’s wrongful conduct is blameworthy, it must be ascertained whether he/she has the necessary capacity to be held accountable or liable, for his/her conduct. Thus, implying that such a person’s mental ability must be such that the intent or negligence may be assigned to him/her.

Furthermore, according to Neethling a person is responsible if he/she has the necessary mental ability to distinguish between right and wrong and if he/she can also act in accordance with such appreciation. Simply, meaning that at the time of the commission of the act the said person must have had the required mental ability, thus if at the time of the commission of the act the person lacks accountability, there can be no fault on his/her part. As according to Neethling, accountability is seen as the basis of fault.

Nonetheless, there are instances, in our law, where a person may lack the necessary mental capacity, such as

  • youthfulness,
  • mental disease or illness,
  • intoxication or a similar condition induced by a drug
  • anger due to provocation.

According to our law, a child who is between the ages of 0-7 years old is always regarded as lacking capacity. In such cases, the actual mental ability of the child is irrelevant and there is irrebuttable presumption that he/she is not accountable.

This point was reflected in the matter of Weber v Santam Versekeringsmaatskappy Bpk; where a 7 year old boy, whilst playing in the sand in front of a block of flats, was ran over by a motorist who was reversing his vehicle from a parked position. The court a quo found contributory negligence on the child’s part and reduced the amount claim by 40%. However, on appeal the Appellate Division concluded that the boy had been culpa incapax (lacking capacity) and should thus succeed for the full amount of his claim.

Further, there in a rebuttable presumption that a child over the age of 7 and under the age of 14 lacks accountability, meaning that it is assumed that he/she lacks capacity until proved otherwise with evidence. Thus, inferring that once a child has completed his/her 7th year, he/she may be accountable and liable in delict if all the requirements for such liability are met.

According to Burchell, a person is at fault where he intentionally commits unlawful conduct, while knowing it to be unlawful. Neethling agrees with this point, by maintaining that an accountable person acts intentionally if he/she directs his/her will at a result which he/she causes while conscious of the wrongfulness of his/her conduct. Therefore, meaning that a for someone to be at fault he or she must not only have the intention to achieve a particular result but must also have the knowledge that such a result would be unlawful or wrongful.

This can take 3 forms:

  • Direct intention (dolus directus): This intention in its ordinary grammatical sense, simply, means that the defendant meant to do the prohibited act or to bring about the delictual consequence. In addition, according to Neethling it is irrelevant whether the defendant is certain that the consequence would result or whether it only appears to him/her to be probable.
  • Indirect intention (dolus indirectus): This is when the perpetrator directly intends one result of his/her conduct, while being aware or having knowledge that another result will unavoidably or inevitably also occur. Consequently, the causing of the second result is accompanied by indirect intent. Therefore, in our law, the offender is said to have intent in respect of the second result which he/she has not desired or which was not his/her primary aim, according to Neethling. As in R v Kewelram; the accused set fire to certain stock which was in a store. His objective was the destruction of the stock, which was his direct intent, in order to obtain the insurance money. However, he foresaw the destruction of the store as a substantially certain, or inevitable, consequence of the burning of the stock, which was ruled as his indirect intent.
  • Dolus eventualis: In Rudolph v Minister of Safety and Security, the court stated that dolus eventualis is when the defendant, while not wanting to cause a particular result, foresees the possibility that he/she may cause the result and reconciles him/herself to this fact; that is, he/she nevertheless performs the act which brings about the consequence in question. Moreover, the facts of R v Jolly provides a clear exemplification of the meaning of dolus eventualis. In this case, the appellants had unlawfully and deliberately derailed a train.

However, no one was seriously injured in the derailment and it was argued, on behalf of the appellants, that there was no desire to injure anyone, especially since the appellants had chosen a spot where the train was moving slowly up a rising gradient with banks on either side of the railway line. Nevertheless, Innes CJ stated that: “Now the derailment of a train, even upon a slightly rising grade, must be attended by terrible possibilities of danger to those travelling upon it.

Jolly recognised this, for he said in his evidence that he contemplated risk of life. But he and his associates were content that risk in the interest of their larger design”. Therefore, the court held that they intended to kill. Furthermore, it is important to note that confusion between dolus eventualis and gross negligence may occur. Reason being, as Neethling puts it, that this form of intent may sometimes be defined slightly different, by stating that the wrongdoer foresees a consequence but recklessly carries on with his/her conduct.

Additionally, the distinction between these two concepts are clarified as follows: in the case of dolus eventualis, the question is whether the defendant ‘actually subjectively’ foresaw the possibility of the consequence. For example, X wants through darts at the dartboard. Y is standing next to the dartboard when X takes aim. X actually foresees the possibility that he that his aim might miss the dartboard and might hit Y with serious consequences. Nevertheless, X decides to proceed (to through the dart at the dartboard) and the dart misses the dartboard and hits Y, in the eye causing Y to lose one eye.

In such a case, the conclusion would be that X intentionally threw the dart at Y, causing Y to lose his eye, even though X did not desire this consequence or foresee it as a necessary consequence of his conduct. Reason being that the mere fact that X subjectively foresaw the possibility that he might hit Y is sufficient for concluding that he acted intentionally. While in the case of negligence, the question is whether the consequence, ‘objectively’ seen, was reasonable foreseeable.

Thus, if X originally foresaw the possibility that he might hit Y but later for some reason came to the conclusion that this would not happen, there will not be dolus eventualis on his part. In such a case, a court would rule that the conscious negligence may be present, that is, that the defendant subjectively foresees the possibility of harm in the circumstances where such harm is also reasonable foreseeable but does not reconcile him/herself to the possibility of this happening. Moreover, it is important to consider that a there is a further division of intent into definite (dolus determinatus) and indefinite intent (dolus indeterminatus).

According to Neethling, dolus determinatus refers to a situation where a wrongdoer’s will is directed at a result which he causes while he/she has a specific person or object in mind. On the other hand, dolus indeterminatus refers to a scenario where the wrongdoer’s will is directed at the result which he causes while he has no specific person or object in mind. For example, where a person throws a bomb into a crowd or derails a train, the fact that he has no particular intention to kill a particular individual in the crowd or upon the train does not mean that he lacks intention, since he knows or foresees that someone will die.

According to our law, it is not sufficient that a defendant had merely directed his will at causing a particular result. Such a person must also know (or be aware) or at least foresee that his/her conduct is wrongful or unlawful. However, Neethling professes that, in certain cases a mistake or error with regard to any matter which has bearing on the wrongfulness of the actor’s conduct, will exclude intent on his/her part.

Neethling argues that motive indicates the reason for someone’s conduct and must not be confused with intent. Thus, while intent implies the willed conduct which the wrongdoer knows is unlawful; motive, conversely, refers to the reason or motivation why a person acts in a particular way, that is, the object he wishes to achieve, his desire, or the facts behind the formation of his will. One can, therefore, logically, argue that motive precedes the formation of the intention to engage in conduct. Moreover, Neethling also explains that motive may serve as proof of consciousness of wrongfulness. As it may be accepted that a bad motive ‘usually’ indicates knowledge of wrongfulness, whereas, a good motive usually indicates the opposite.

The issue here is whether intent is present where the defendant causes a result in a manner different from that foreseen by him/her. Hence, a distinction must be made between a material and an immaterial deviation from the planned or foreseen causal nexus.

In the case of a material deviation intention is absent, this point was argued in S v Goosen ; where X, Y and three other persons participated in a robbery. X drove the robber’s vehicle. X did foresee that Y, who had a loaded gun, could shoot and kill their victim. During the robbery Y jumped out of the way of the car driven by the victim and this caused a shot to be discharged involuntarily from the gun he held. The shot hit and killed the victim. The court held that causing death by intentional conduct differs markedly or significantly from causing death by unforeseen conduct.

Thus, the court took the viewpoint that there was a material difference between the actual causal chain of events and that foreseen by X. Consequently, X was acquitted of murder since his intention did not cover the manner in which the death was caused. Nevertheless, intent is assumed to be present where the deviation is not significantly different from the foreseen causal chain of events. Case in point, S v Masilela where the two accused throttled the deceased and hit him over the head with the intent to kill him and while believing him to be dead; they threw him onto a bed and set fire to the house.

However, a post-mortem examination revealed that the deceased did not die of strangulation or the blow to the head but because of the poisonous fumes of the fire. The court ruled that there was intent to murder, reason being, that the court took the viewpoint that the two perpetrators intended and caused an unlawful consequence and that it would be absurd to accept that they did not intentionally kill the deceased simply because the causal chain of events between their conduct and the result is different from that foreseen by them.

As earlier pointed out for a person to found liable for a delictual claim, such person must have intent. However, this is not conclusive as such a person might also be held liable for being negligent under the circumstances. According to Neethling, in cases of negligence a person is blamed for an attitude or conduct of inattentiveness, thoughtless or incaution because, by giving inadequate attention to his/her actions, he/she failed to adhere to the standard of proof legally required of him/her.

Furthermore, case law dictates that the test courts adopt to prove negligence is the application of the reasonable person (bonus paterfamilias). Implying, that a defendant is negligent if the reasonable person in his/her position would have acted differently and according to the courts the reasonable person would have acted differently if the unlawful causing of damage was reasonable foreseeable and preventable.

Case in point, Kruger v Coetzee, where the plaintiff’s motor vehicle was damaged in a collision with one of the defendant’s horses, which had strayed from a camp on the defendant’s property through an open gate on to the public road along which the plaintiff was travelling. The gate had been put in the fence by the local divisional council to afford access through the defendant’s property to a construction site and it frequently occurred that the drivers of vehicles moving to and from the building operations left the gate open.

The defendant had lodged complaints about this with both the divisional council and the contractors on the construction site. Despite this, he continued to keep his horses in the camp. The defendant based her claim on the defendant’s alleged negligence, firstly, in that he allowed his horses to stay on the public way unattended and, secondly, in that the gate had remained open with the effect that he was unable to exercise proper control over his animals.

Comparison between negligence and intention: With reference to Van der Merwe and Olivier’s definition of negligence it is evident that negligence may only exist in respect of a result if the defendant has not ‘intentionally’ caused that result. Consequently, this implies that intention and negligence are equally exclusive concepts in the sense that one cannot be present when the other exists. Reason being that in the case of intent the law blames the defendant because he/she knowingly acted unlawfully, whereas, in the case of negligence the defendant is blamed because his/her conduct differed from that of a reasonable person when he/she should have known better.

Thus, in the case of intent the defendant is aware of the unlawfulness of his/her conduct, while in the case of negligence he/she should have been aware thereof. In addition, logically speaking, because a person cannot be aware and unaware of the same fact, intention and negligence cannot overlap. Contrary to the above, there are decisions that suggest that if intent is present, negligence is included in the intent. In S v Ngubane the court ruled that, for the purposes of criminal law, intent and negligence may be present simultaneously. In this case, the court simply argued that the intentionally causing of harm to another person is contrary to the standard of care which a reasonable person would have exercised and that negligence is thus simultaneously present.

Who is the ‘reasonable person’ (bonus paterfamilias): According to Neethling, the reasonable person is merely a fictitious person, a concept created by the law to have a workable objective norm for conduct in society. He goes on to emphasise that the reasonable person is not an exceptionally gifted, careful or developed person; neither is he underdeveloped, nor someone who recklessly takes chances or who has no caution. As authority to the above, in Herschel v Mrupe the court stated that: “The concept of the bonus paterfamilias is not that of a timorous faintheart always in trepidation lest he or others suffer some injury; on the contrary he ventures out into the world, engages in affairs, and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do likewise”.

Furthermore, it must be emphasised that the reasonable person serves as the legal personification of those qualities which the community expects from its members in their daily contact with one another. This assumption was better explained by Joubert JA, in Weber v Santam, where the learned judged explained that “In my opinion it serves no purpose to ascribe various anthromorphic characteristics to the diligens paterfamilias, because we are not dealing with a physical person, but only with the name of an abstract, objective criterion.

We are furthermore not concerned with what the care of a legion of reasonable person types would have been, such as a reasonable uneducated person, reasonable illiterate person, a reasonable skilled labourer, a reasonable unskilled labourer, a reasonable adult or a reasonable child. There is only one abstract, objective criterion, and that is the Court’s judgement of what is reasonable, because the court places itself in the position of the diligens paterfamilias.

Additionally, what we can deduce from this is that the reasonable person has certain minimum knowledge and mental capacity which enables him/her to appreciate the dangerous potential of actions. In general, according to Neethling the law makes no provision for the fact that a defendant may be stupid, illiterate, inattentive, intellectually retarded or mentally unstable; as the courts deem that everyone is required conform to the objective standard of the reasonable person.

However, when the defendant is a child or an expert the court would not strictly follow the above principles, for example, in the case of an expert the courts would apply the test of the “reasonable expert”. Case in point, Durr v ABSA Bank Ltd, where the plaintiff sought to recover from the defendants R595 000 which she and other members of her family had invested in the debentures and the preference shares issued by the H&I companies. These investment opportunities had been brought to her attention and strongly recommended by the second defendant, Stuart, the regional manager of the first defendant, ABSA, broking division.

Plaintiff contended that owing to Stuart’s negligent failure to exercise the degree of care and skill which she had been entitled to expect of someone in his position and for failure the first defendant should be held vicariously liable, as she had lost her investments when H&I was liquidated. The court a quo ruled in favour of the defendant’s. However, the Supreme Court of Appeal held that Stuart had in fact acted negligently in recommending the investments. Thus, the defendant was held vicariously liable for the losses.

Contributory fault

Fault, in general, refers to the defendant’s conduct, whereas, contributory fault refers to the plaintiff’s conduct. What can be deduced from these sub-sections is that where the conduct of the plaintiff has contributed to the defendant’s initial fault, the defendant will still be found to be at fault. However, since the plaintiff’s conduct was a contributing factor to the defendant’s fault, the amount of damages would be reduced.

Case in point, Jones v Santam where the court ruled that the plaintiff have been contributory negligent as she had without prior warning moved into the road in the face of the oncoming vehicle and, as a result, the court reduced the amount of damages by 50%, in terms of Section  of the Apportionment of Damages Act. Nevertheless, it is within the discretion of the courts to decide whether the conduct of a particular plaintiff can be regarded as contributory fault. As in Botes v Van Denventer, where a lorry, driven by a servant of the defendant, had in the dark collided with 3 horses belonging to the plaintiff.

Collision took place on an unfenced public road running through a paddock of the plaintiff and the plaintiff claimed full value of the 3 horses as they had to be destroyed. Defendant alleged that the plaintiff had been contributory negligent in allowing his valuable horses to run loose in the vicinity of the open road and in failing to take precautionary measures against an occurrence like the one at hand, such as stabling the horses at night, erecting warning signs at night, or fencing the public road.

The court ruled that the defendant was fully liable for the damage caused and that the plaintiff’s failure to take preventative steps did not signify any contributory negligence on his part, as the reasonable man would not have taken the steps as suggested by reason of the disadvantages, costs and futility of such measures under the circumstances. Furthermore, where the defendant raises the ‘defence’ of contributory negligence on the part of the plaintiff, the defendant has to prove that such a defence on a balance of probabilities.


To conclude, this paper expressly comprehends that for any plaintiff to succeed in his/her delictual claim he/she must prove that the defendant was at fault and In short, fault means that a person can be blamed for his conduct. Additionally, fault can take two forms, namely, intention and negligence. However, before a person can be blamed for his conduct, one has to establish whether he can be held accountable. In addition, a person acts intentionally if he purposely does something he knows to be wrong.

Negligence, on the other hand, occurs when a person unintentionally commits a wrongful deed. In this regard, the reasonable man test is used which involves the answering of two questions: would the reasonable man have foreseen his conduct causing damage? If so, could any steps have been taken to avoid the damage? A person is negligent if the answer to both questions is yes. Lastly, this paper also disclosed that in some cases a plaintiff’s conduct may also be deemed as contributory fault which would lead to a reduction in the amount of damages claimed.


  1. Burchell, J. , & Milton, J. (1997). Principles of Criminal Law. (2nd ed. ). Juta: Cape Town.
  2. Neethling, J. , et als. (2010). Law of Delict. (6th ed. ). LexisNexis: Durban.
  3. Neethling, J. , et als. (2007). Case Book on the Law of Delict. (4th ed. ). Juta: Cape Town.

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Fault as a Pre-Requisite Constitutive Element for Delictual Liability. (2016, Oct 26). Retrieved from


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